Lawrence v Sutherland Shire Council

The Site

1. The site is an irregular, rectangular shape, fronting to Pacific Crescent for 9.14m, which forms the western boundary. The total area of the site is 613.4m², with side boundaries to adjoining residential properties of between 39.32m and 48.16m.
2. The rear of the site adjoins Port Hacking beach reserve (the waterway), which forms the eastern boundary. The site has a steep slope towards the east, where sandstone rock shelves mark transitions in slope. There is a steep, sparsely vegetated incline between the road and the site boundary, across the (Council's) verge.
3. Currently, the site is dominated by a single storey dwelling located in the centre of the site, and surrounded by large, mature native and non-native trees, and domestic shrubs. The site has no onsite parking.
4. Surrounding the site, along Pacific Crescent, are generally two, three and four- storey detached dwellings, that project and orient eastwards towards the waterway, and with generally open, elevated carports that predominate along the street frontage.

Relevant Planning Controls

1. The jurisdictional requirements of s 4.15(1) of the EPA Act, described below, are relevant for the Court's consideration to grant consent to the DSA under appeal: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
2. The site is located on lands addressed by the State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coast), pursuant to cl 5. In consideration of the DA under appeal, the parties specifically refer the Court to the jurisdictional requirements established in cl 14 (1), as follows: 14 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority - (a) has considered whether the proposed development is likely to cause an adverse impact on the following - (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that - (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised - the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.
3. The proposed development is required to comply with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX Certificate (No. A340908, dated 19 February 2019) relevant to the proposed development has been provided in evidence and is also identified in the conditions of consent, in compliance with the SEPP BASIX provisions. The conditions of consent (Annexure A) are amended to refer specifically to the BASIX certificate that supports the DA.
4. The site is located within the E3 Environmental Management zone (E3 zone), as described in the Sutherland Shire Local Environmental Plan 2015 (SSLEP).
5. Pursuant to cl 2.3 of the SSLEP, the proposed development is permissible and the objectives of the E3 zone, as follows, are relevant for the Courts consideration of the DA under appeal: Zone E3 Environmental Management 1 Objectives of zone • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. • To allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality. • To limit development in the vicinity of the waterfront so that the locality's natural qualities can dominate. • To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment. • To share views between new and existing development and also from public space.
6. The parties agree that the proposed development complies with the relevant numeric development standards of the SSLEP. The site is identified as being on "Environmentally Sensitive Land" in the 'Terrestrial Biodiversity Map', pursuant to cl 6.5. Also, the site is within the foreshore area shown on the 'FBL and Foreshore Area Map', with the rear portion of the site located below the foreshore building line (FBL), pursuant to cl 6.9.
7. The Sutherland Shire Development Control Plan 2015 (SSDCP) is relevant for the Court's consideration of the proposed development under appeal, and the parties draw the Court's attention specifically to the controls in: Chapter 2 (dwelling house - E3 Environmental Management Zone); Chapter 36 (vehicular access, traffic parking and bicycles) and Chapter 39 (natural resource management).

Evidence

1. The Court was provided with written and oral evidence from the following planning experts: Mr David Waghorn for the applicant; and Ms Simone Plummer for the respondent. The Court refers to their joint expert report, tendered as Exhibit 3.
2. The Court was provided with written and oral evidence from the following arboriculture experts: Mr Ross Jackson for the applicant; and Mr Ian McKenzie for the respondent. The Court refers to their joint expert report, tendered as Exhibit 4.

Does the proposed development protect scenic quality and preserve visual amenity to the waterway?

1. The Council contends that the proposed development is inconsistent with the surrounding built form as viewed from the waterway, because the (second storey of the) proposed dwelling projects too far into the rear portion of the site, and will appear dominant to the waterway. The Council responds that the extension of the existing dwelling on the ground floor level does not comply with cll 1.2.5 and 1.2.6 in Chapter 2 of the SSDCP, to limit two-storey development in the rear (40%) of a lot. This was referred to in the hearing as the '60:40 rule'.
2. The principal issue of disagreement between the experts relates to the extension of the ground floor level, that forms a second storey above the lower ground floor level, within the rear portion of the site. The lower ground floor level is located behind a natural rock shelf, and is not of concern to the experts.
3. Ms Plummer contends that as a consequence of the second storey projection into the rear 40% of the site, this level does not satisfy the objectives described in cl 1.1, Chapter 2 of the SSDCP, specifically because there is an adverse visual impact to the waterway (objective 1).
4. Further to this, she contends that the proposed development does not comply with the requirements of: cl 14(1)(a)(iii), (b) and (c) of the SEPP (Coast); and control 1.2.5 in Chapter 2 of the SSDCP, which states: '5. Two or three storey development is only permitted on the front of an allotment and may extend to a maximum of 60% of the depth of the site measured from the property boundary.'
5. She does not consider that control 1.2.6 in Chapter 2 of the SSDCP is satisfied to vary this maximum depth into the rear of the site because the proposed development is not a 'better outcome'.
6. Ms Plummer observes that when viewed from the beach adjacent to Port Hacking, the proposed second storey, in the rear of the site, would become a dominant feature and adversely visible to the waterway.
7. Mr Waghorn however, considers that the proposed design addresses the constraints and natural features of the site, being the slope, natural rock features and significant trees, and that the proposed extension of the existing dwelling will appear consistent with, if not diminutive to, other residential dwellings along Pacific Crescent, when viewed from the waterway (and in the streetscape).
8. He states that the proposed extension of the existing dwelling towards the rear of the site is appropriate, because it: responds to the steep slope, rock shelf, trees and existing/approved dwellings; retains significant trees; results in no adverse amenity impact to adjoining properties; and is not visually dominant to the waterway or streetscape, particularly alongside the large, dominant dwellings that are characteristic of Pacific Crescent. He relies on control 1.2.6 in Chapter 2 of the SSDCP, as described below, to vary the 60:40 rule (in control 1.2.5) and says that the proposed development provides a 'better outcome' in context of the site: '6. Despite 5, where the topography, orientation or context of the site would allow for a better outcome to be achieved through accommodating two storey developments in the rear portion of the allotment, a variation may be considered if this solution will not result in a significant loss in the privacy or amenity of adjoining properties.'
9. Having heard the evidence of the experts and undertaken a site inspection, providing my own observations of the site context and view from the waterway, I am satisfied that the proposed development does not result in any adverse visual amenity from or to the coastal/waterway perspective. I explain my rationale below.
10. The proposed extension of existing dwelling within the rear (40%) portion of the site, I find is not visually obtrusive to the waterway or coastal environment. In particular, the second storey element of the dwelling in the rear of the site does not add uncharacteristic bulk to the building or cause visual impact. I observed from the beach adjacent to the waterway several existing dwellings that already dominate the view from this perspective, including those that project buildings into the rear of the lot beyond the FBL, such as the adjoining property at 27 Pacific Crescent.
11. I am satisfied that the proposed extension of the dwelling to the rear of the site will not appear dominant in view from the waterway or to the surrounding coastal environment. The proposed design is unobtrusive compared to surrounding approved developments. I note from the consent documents (Exhibit 5) of the recently approved development at 21-23 Pacific Crescent that the approved building form will likely dominate the view from the waterway and the existing building on the site.
12. I accept that the apparent pursuit of ever larger dwellings along Pacific Crescent is a constant battle for Council to contend with, however, I do not find that the proposed development exacerbates this situation, and in fact, will appear smaller in comparison to approved developments when viewed from the water way.
13. The proposed design sympathetically and appropriately responds to the constraints of the site, without adverse visual amenity or impact to scenic qualities of the coast. The proposed dwelling extension is designed and sited to minimise any potential visual impact to the waterway, by: being a lower scale in comparison to adjoining properties: the proposed retention of significant and contributing trees on the site, that soften the building form; and the stepping down of the building form consistent with the natural topography.
14. The proposed development does not have any adverse impact to the matters of consideration in cl 14 of the SEPP (Coast). I am therefore satisfied that the proposed development complies with cl 14 of the SEPP (Coast). I address in detail later in this judgement, my satisfaction that control 1.2.6 in Chapter 2 of the SSDCP is relevant for consideration to justify the extension of the two-storey building form into the rear (40%) portion of the site, thereby varying the 60:40 rule.
15. The experts agree, and I concur that the proposed development does not extend beyond the FBL, and that the requirements of cl 6.9 of the SSLEP are satisfied.

Is the proposed built form compatible with the streetscape and character of the local area?

1. Council contends that the proposed development, and specifically the ground floor level extension of the existing dwelling house, is uncharacteristic with the local area because it extends within the rear (40%) portion of the site. This, the Council considers will create an unacceptable precedence in the local area.
2. I understand that the local area is described with the streetscape along Pacific Crescent, and also considers the view from the waterway.
3. I have addressed the view from the waterway in the judgement above, and am satisfied that the proposed development is consistent to protect the scenic qualities of the waterway. I address below, that I find consistency with regards to the streetscape and character of the local area.
4. I accept that the planning experts have resolved the issues that relate to the proposed carport and studio, based on the amended plans, except for the driveway crossover, which I address later in the judgement. Therefore, the Court's assessment will focus on the extension to the existing dwelling, and in particular the second storey element, which is still in contention.
5. Ms Plummer considers that, as a consequence of the second storey projection (of the ground floor level of the existing dwelling) into the rear 40% of the site, the proposed development is inconsistent with the objectives of the SSDCP, specifically 1.1.1, 1.1.2 and 1.1.4 in Chapter 2, because: there is an adverse visual (and scenic) impact to the waterway and streetscape; the proposed design is a poor response to topography; the private open space in located the centre of the building; and there is adverse solar access impact to 21-23 Pacific Crescent.
6. Further to this, she explains that the proposed development does not comply with the requirements of cll 6.5 (3)(a)(i) and (b), 6.16 and 6.17 of the SSLEP, and control 1.2.5 in Chapter 2 of the SSDCP.
7. I address compliance with cl 6.5 separately, as it relates directly to the retention and removal of trees on the site, and terrestrial biodiversity, which is a separate contention to be considered. I have already determined my satisfaction that cl 1.2.5 of the SSDCP should be varied, pursuant to cl 1.2.6 of the SSDCP, although expand on this explanation below.
8. I agree with Mr Waghorn with regards to his assessment of the relationship of the proposed development with the streetscape. I accept that unlike other existing/approved developments along Pacific Crescent, the proposed building form on the site is set well back from and below the street frontage, that will be obscured by the proposed carport and studio structures (which do not concern Council, based on the amended plans).
9. I agree that there are numerous developments along this street that have carport structures similarly located close to the street and cantilevered over the sloping land form, with and without enclosed structures below. I find that due to the location of the proposed carport with a studio beneath, large setback to the dwelling and slope of the site, the proposed extension of the existing dwelling to the east (and west) will not be visible from the street, therefore the proposed development is not inconsistent with the streetscape and is in character with the local area. The proposed extension of the pantry to the west is minor and will not be visible or detrimental to the streetscape.
10. I am satisfied that the proposed development is an appropriate bulk and scale, does not result in adverse visual amenity impacts to the waterway (as discussed previously) and is well-designed within a landscaped setting, that is in context with the site. The proposed development responds to the natural landforms, and does not impose on the public domain, particularly the waterway and streetscape.
11. The proposed development is agreed by the experts as 'modest' in dimension compared to surrounding residences, and I concur with this description.
12. Despite the numerical non-compliance of the proposed development with control 1.2.5 in Chapter 2 of the SSDCP, I consider that the proposed design responds appropriately to the topography of the site and is a better outcome that addresses the existing constraints on and around the site.
13. I find that the proposed development is reasonable and appropriate in its response to the topography/slope of the site. To require a building form to extend up the slope (westwards), as suggested by the respondent, is not a better outcome on this site because greater excavation would be required, poorer amenity may result to the site and to adjoining properties (due to increased proximity to approved dwellings) and a potentially more elevated building could be constructed to take advantage of the views to the waterway, thereby increasing dominance to the waterway.
14. I do not consider the proposed development will result in a significant loss in the privacy or amenity of adjoining properties, which I expand on later in this judgement. I agree with Mr Waghorn, after review of the shadow diagrams in Exhibit C, that a 'compliant' building form, built further west of the existing building on the site, could likely result in increased overshadowing and privacy issues to adjoining properties.
15. Therefore, the proposed development is a 'better outcome' for this site and satisfies control 1.2.6 in Chapter 2 of the SSDCP to vary the 40:60 rule established in control 1.2.5.
16. The proposed development considers and complies with the objectives of cl 3 in Chapter 2 of the SSDCP, with regards to addressing the existing landform on the site. I am satisfied that the proposed design results in minimal excavation on a steeply sloping site, is appropriate to the topography, and will not be viewed adversely from the public domain. There is minimal impact to vegetation both on the site and adjoining properties.
17. With regards to the objectives of the E3 zone, as described in cl 2.3 of the SSLEP, I am satisfied these are achieved by the proposed development. I consider that the proposed development is of an appropriate scale, siting and responds well to the site constraints, and does not result in adverse impacts to either to the local area, adjoining properties or the public domain. The natural and scenic qualities of the local area are preserved, and the sensitive nature of the environment, on and around the site, is well considered.
18. After consideration of the requirements of cl 6.16, I am satisfied that cl 6.16 of the SSLEP is addressed by the proposed development. The proposed private open space is sufficient (in size and location) for use by the residents of the site and (the experts agree) there are no adverse amenity impacts resulting from its siting. Adjoining properties also are not adversely affected.
19. I have considered cl 6.17 of the SSLEP and for the reasons provided above, am satisfied that the proposed design and siting of the development achieves the relevant requirements of cl 6.17.
20. I do not consider that the proposed development results in an unacceptable precedence for second storey development in the rear (40%) portion of the lot. The majority of lots along the streetscape are already developed or approved to be developed, and each responds differently to the slope constraints and relationship to adjoining developments. The focus of development along this streetscape appears to be optimisation of views across Port Hacking. Development in the rear of the lot does not appear to be a significant contributary factor, as better views are obtained if buildings extend in a more elevated position, westwards.

Is there an adverse amenity impact to adjoining properties from the proposed development?

1. Council contends that the proposed extension of the rear of the existing dwelling, and particularly the second storey element, results in adverse solar access to the approved development on the adjoining property at 21-23 Pacific Crescent.
2. The experts agree that there is some degree of overshadowing to the newly approved dwelling on 21-23 Pacific Crescent, as shown in the solar access plans in Exhibit C, however it is disputed whether the impact is considered adverse. There is no concern held by the experts with regards to solar access impact to residents of the site or to the northern adjoining property, at 27 Pacific Crescent.
3. Ms Plummer considers the projection of the dwelling to the east on the site with the two-storey element, results in adverse and unnecessary overshadowing to the southern adjoining (newly approved) dwelling because of the non-compliance with the 60:40 rule. She contends that a 'compliant' development would not result in adverse solar impact to the adjoining property.
4. Mr Waghorn considers that any additional overshadowing to the southern adjoining property is not 'adverse' because the overshadowing, as a result of the proposed extension of the dwelling, will be restricted to the private open spaces on the lower levels of the approved dwelling, that do not serve primary living spaces. He observes that the more elevated building elements of the approved dwelling, which include the primary living spaces, will not be adversely impacted by the proposed development.
5. Mr Waghorn considers that due to the steep slope of the site and the bulk of the approved adjoining dwelling, a 'compliant dwelling' that was extended westwards (upslope) on the site, would have a more significant impact to solar access on the northern and southern adjoining properties.
6. I note from the approved plans for 21-23 Pacific Crescent (Exhibit 5), that the main living spaces are located on level 2 and set westwards on the lot. Level 2 of the approved dwelling is elevated above and behind the existing dwelling (and its extension) on the site. Level 2 also contains a private open space serving the living areas. There are additional private open spaces on level 1 and the basement level, leading off the bedrooms and guest level, respectively. The approved building is oriented towards the waterway(east) and elevated to take advantage of the view. To protect privacy on the site (the subject of the appeal), privacy screens and minimal windows are designed along the northern boundary on floors below level 2 on the approved adjoining building.
7. Clause 5 in Chapter 2 of the SSDCP provides objectives and controls that consider solar access, and as it relates to this appeal, is specifically assessed for the adjoining property to the south. Objectives 5.1.3 and 5.1.4, together with controls 5.2.2 and 5.2.7, are relevant for the Courts consideration.
8. I am satisfied that the proposed development does not impede the requirement for a minimum of three (3) hours of direct sunlight between 9am and 3pm in midwinter (21 June) to the living area of the approved dwelling, at 21-23 Pacific Crescent. I find that the proposed development on the site will not impede a minimum of 10m2 of private open space on this dwelling from receiving three (3) hours of solar access. I have no evidence before me as to whether these portions of the approved dwelling already will receive the required solar access due to the privacy screens. However, I find that the proposed development on the site will not cause further adverse impact. I accept there will be some limited additional overshowing to the rear portions of the approved dwelling in the afternoon, however the living spaces and private open spaces on level 2 are not affected by the proposed development due to their elevation, orientation and siting on the lot. Therefore, I am satisfied that objectives 5.1.3 and 5.1.4, and controls 5.2.2 and 5.2.7 in Chapter 2 of the SSDCP, are achieved by the proposed development.
9. I am satisfied that the proposed development on the site does not adversely impact amenity on adjoining properties, and therefore a variation in the requirement to site a building according to the 60:40 rule is appropriate on this site. Therefore, the proposed development with a two-storey extension to the existing building form in the rear of the site satisfies cl 1.2.6 in Chapter 2 of the SSDCP.

Are the significant trees on and around the site sufficiently protected?

1. Council contends that two significant trees on the site are not sufficiently protected by the proposed design of the carport crossover and dwelling extension. The trees in dispute are identified as T1 and T7.
2. The trees which are the focus of attention between the arboriculture and planning experts are identified as: T1, located in the northern portion of the verge, between the road and site's front boundary; T2, located in the centre of the site; and T7, located towards the rear portion of the site below an existing rock shelf.
3. The experts agree that T1 and T7 should be protected and retained. The experts also agree that T2 can be removed.
4. The arboriculture experts agree that the proposed extension of the dwelling will not directly impact on the health of T7. The dispute between the planning experts is whether T7 could potentially be removed in the future, due to its proximity to the extension of the dwelling, within 3 m of its trunk.
5. Ms Plummer is concerned that the proposed extension of the dwelling projects within close proximity to T7, and therefore could result in the future to its removal. T7 is a tall (11 m height with 10 m wide canopy), mature native tree (Corymbia gummifera, also known as Red Bloodwood) that she says forms an important feature to the scenic view from the waterway.
6. I note that the concern regarding T7 is not described in the amended SoFC or well explored in the planner's joint expert report (Exhibit 3). It appears to be a concern of Council that arose during the site inspection for the hearing, and was thereafter discussed in oral evidence.
7. Mr Waghorn explains that the applicant has expressly designed the built proposed extension of the dwelling to preserve and protect T7.
8. I accept that the arboriculture experts are satisfied that the proposed design of the dwelling extension will not have an adverse impact to T7. The issue is raised from a planning perspective rather than arboricultural.
9. I do not agree with Ms Plummer that the location of the proposed exertion of the dwelling necessitates in the future, the removal of T7, pursuant to cl 4.10 of Chapter 39 of the SSDCP. I accept that this clause provides for the removal of trees located within 3 m of a building structure, however I also note that this clause states that removal of a tree is required to be assessed by Council upon application. I consider that tree removal could be granted for any number of reasons, irrespective of the location of the dwelling to this tree, including because of the dropping of large branches from a significant height potentially causing harm to persons in the rear yard. I accept that the applicant has designed the dwelling extension in an effort to retain this tree.
10. Therefore, I find that T7 is adequately protected by the proposed development, including in the amended plans and proposed conditions of consent.
11. I accept that the experts agree that the tree identified as T2 (no details on this tree are provided to the Court) can be removed as part of the proposed development, without adverse impact to the surrounding character or environment. T2 is shown on the amended plans as being within the building footprint of the carport and studio. It is agreed by the experts that this tree will be detrimentally impacted by the proposed carport and studio structures, and is located within the central portion of the site, which is not optimally located for most approvable development.
12. I accept the arboriculture experts' evidence that the root zone of the significant tree, T1 (which is an Angophora costata) is sufficiently protected by the proposed design of the building form (carport and studio), which reduces encroachment into the tree root zone (TPZ) to 35% for the carport and stairs, and 6% for the studio. I understand that the experts disagree as to whether the proposed carport crossover can be designed differently to mitigate potential loss of water to the tree root zone that could affect the tree's longevity.
13. The arboriculture experts remain concerned by the extent of hard surface coverage over the roots of T1 due to the elevated (carport and driveway crossover) structure, whilst accepting that mitigation by irrigation could improve water infiltration to the root zone. The applicant proposes a subsurface drip irrigation system around the tree roots, which Mr Jackson is convinced is appropriate and effective for this site.
14. Mr McKenzie agrees to this drip irrigation system, however, holds concerns with regards to the maintenance of this system and therefore its ongoing effectiveness in protecting the roots of T1. He prefers, in addition to the drip irrigation system, a permeable driveway crossover, which would provide a more natural rainfall recharge distribution that does not rely on ongoing maintenance.
15. The parties did not provide the Court with any expert engineering evidence on the suitability of the proposed drip (root watering) irrigation system, and they accept that this system has not been reviewed for engineering suitability on the steep slope. The proposed location of the drip irrigation system to T1 is shown in the amended plans, with details to be provided later, by condition of consent.
16. I hold similar concerns as expressed by Mr McKenzie with regards to the ongoing effectiveness of the proposed drip irrigation system to sustain the root zone of T1. There is insufficient detail provided in the DA to inform the Court on the reliability of the proposed system, and in particular the engineering appropriateness of this system on such a steep slope, as encountered beneath the driveway crossover. I prefer Mr McKenzie's solution to protect the root condition of T1, which is practical, does not solely rely on an ongoing maintenance regime and is more likely to be reflect natural conditions. To protect and preserve T1, I consider it appropriate to impose on the proposed development a permeable driveway crossover to the carport in addition to the agreed drip irrigation system located around the roots of T1. This is imposed by amendment of the conditions of consent (Annexure A), and described below in this judgement.
17. I observed during the site inspection that there are a number of examples of permeable driveway crossings within the streetscape along Pacific Crescent. Therefore, a permeable driveway cross over would be consistent with the streetscape and in character with the local area.
18. Based on the proposed retention and protection of trees, T1 and T7, I am satisfied that the proposed development will maintain terrestrial biodiversity, and is consistent with cl 6.5 of the SSLEP. The proposed design, as amended and described in the conditions of consent in Annexure A, provide appropriate measures to mitigate any potential for adverse impact to significant trees on the site.

Assessment of other relevant jurisdictional requirements not in contention?

1. Pursuant to s 4.15(1) of the EPA Act, to grant consent to a DA, the Court is required to consider all matters of relevance to the DA under appeal. A recent decision by Chief Justice Preston in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16] explains that the Court must be satisfied irrespective of whether jurisdictional issues were raised in contention.
2. Below I address the Court's requirement for satisfaction of other relevant jurisdictional requirements that relate to the DA under appeal, and which have not been addressed above.
3. In consideration of the relevant matters that relate to the environmental planning provisions, both gazetted and proposed, as required in s 4.15(1)(a)(i) and (ii) of the EPA Act, I address any outstanding requirements below.
4. I am satisfied that the provision of a BASIX Certificate is described in the conditions of consent, which relates to the proposed development, and therefore satisfies the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
5. I find that the other relevant requirements of the SSLEP for the Courts consideration that are not described above in this judgement, are achieved by the proposed development. I am satisfied, based on the amended plans and supporting documents to the DA under appeal, that all the relevant development standards are achieved by the proposed development. I accept that the site is located within an E3 zone, and permissible with consent, pursuant to cl 2.3 of the SSLEP. There are no non-compliances with numeric development standards described in the SSLEP.
6. I am satisfied that the amended DA under appeal complies with the relevant matters established in ss 4.15(1)(a)(i) and (ii) of the EPA Act.
7. In assessment of s 4.15(1)(a)(iii) of the EPA Act, the Court has assessed the proposed development pursuant to the relevant objectives and controls described in the SSDCP. Further to the controls of the SSDCP previously addressed in this judgment, I am satisfied that the other relevant controls of the SSDCP, are achieved. Specifically, and as originally raised in contention that was advised to the Court as resolved, I accept the advice of Council that the proposed stormwater management system shown in the amended plans (Exhibit H), is capable of servicing the site and is sufficiently described by conditions of consent. The proposed stormwater management is therefore consistent with the SSDCP.
8. I am satisfied that the amended DA before the Court achieves the relevant matters of consideration required for s 4.15(1)(a)(iii) of the EPA Act.
9. I accept that s 4.15(1)(a)(iiia) of the EPA Act is not relevant to the amended DA under appeal. With regards to s 4.15(1)(a)(iv), I accept is addressed by the agreed conditions of consent, and therefore this provision is satisfied.
10. I am satisfied that the proposed development will not have adverse environmental, social or economic impact, and that the site is suitable for the proposed development. Therefore, ss 4.15(1)(b) and (c) of the EPA Act are achieved.
11. I accept that the amended DA under appeal was notified to residents, consistent with the requirements of the SSDCP. There were no (resident) submissions received in objection in response to notification periods. I am satisfied that s 4.15(1)(d) of the EPA Act is achieved.
12. There were no resident submissions in objection, and there is no assessed adverse impact to adjoining residents. Therefore, I am satisfied that the proposed development is in the public interest, and s 4.15(1)(e) of the EPA Act is achieved.

Conditions of consent relating to DA 19/0114

1. The parties have agreed to the conditions on which the consent should be granted. The parties agreed and disputed conditions (in track changes) are provided in Exhibits 6 and L, for the respondent and applicant, respectively.
2. I accept the conditions in full as agreed between the parties, which become Annexure A to consent of DA 19/0114.
3. Further to these agreed conditions, those that remain in dispute, relate to the driveway crossing, drip irrigation piping and replacement tree planting. These are resolved by the Court below, and are described in Annexure A.
4. I accept Council's preferred condition that relates to the driveway crossover, described in condition 2(i), and outlined below, because it more effectively mitigates any potential impact to T1, as assessed previously: "i) The driveway crossover must use metal grid grating with a permeable recycled rubber mat."
5. I accept a combination of Council's and the applicant's preferred condition 2(ii), as outlined below, because it makes it more transparent that the design of the drip irrigation system is not reliant of the 'ag pipe' shown on the plans that attach to the DA, which must be placed in response to the project arborist: "ii) Rainwater collected via a strip drain across the driveway shall be dispersed under the driveway crossover to the root zone of Tree 1. The water shall be evenly distributed across the root zone under the crossover via drip irrigation network. Note: a length of ag pipe alone will not adequately disperse the water throughout the root zone, as is required. The "ag pipe depicted in Drawing No. DA.1018 Issue LEC (i) is not approved. The layout of the drip irrigation network shall be approved by the project arborist."
6. I accept the applicant's preferred condition 11A, as described below, because the detail provided is relevant to the context of the site and purpose of the landscape plantings: "A. Design The landscaping must be designed in accordance with the approved plans, except where modified by the following: i) Endemic screen planting informally to a varying height of between one to three metres in height is to be established across the site below the studio deck to break up the form of the development on the upper part of the site. ii) The location of two new trees shall be notified to and approved by council before work commences. The location of new trees shall be a minimum of 4.0 metres from any building and a minimum of 2.0 metres from any property boundary. iii) The new trees shall be planted in accordance with the following criteria: a) The new trees shall be planted in the location approved by Council before the commencement of works, being a minimum of 4.0 metres from any building and a minimum of 2.0 metres from any property boundary. b) The species of the new trees shall be Angophora costata (smooth barked apple). c) The planting stock size shall be at least 100 5 litres. d) The planting stock shall comply with the Australian Standard Tree Stock for Landscape Use AS 2303-2015. e) Planting holes for trees shall not be excavated deeper than the root ball and that new trees shall not be staked. f) The new trees shall be planted by a qualified horticulturist or arborist, with a minimum qualification of Certificate 3. g) The new trees shall be maintained in a healthy and vigorous condition. h) If the tree dies or needs to be removed within 10 years of planting, it shall be replaced with a similar tree in accordance with these conditions."
7. I accept a modification of Council's preferred condition 11C (with a reference to a native tree), as described below, because the replacement of T2 with a native tree ensures the site continues to be viewed as consistent with scenic qualities and character of the local area, which the parties both agree is appropriate: "C. Prior to Issuing of the Final Occupation Certificate The landscape works must be completed in accordance with this development consent. Following completion of construction and prior to the issue of the Occupation Certificate two new trees shall be planted on the site. Following completion of construction and prior to the issue of the Occupation Certificate one new native tree shall be planted. Prior to the issue of the occupation certificate, council shall be notified in writing that the new trees have been planted in accordance with these conditions and an inspection of the new trees shall be facilitated at any future date thereafter if council wishes to inspect the new trees."
8. I accept the applicant's preferred condition 12A(i), as described below, because the detail provided is relevant to the context of the site and proposed design: "i) To preserve the trees numbered 1, 4, 5, 6 and 7 the footings of (respectively): a) the proposed detached carport and studio; and b) the "lower ground floor" of the proposed dwelling, must be isolated pier and beam construction within a 5m radius of these tree's trunks. The piers must be hand dug and located such that no roots of a diameter greater than 50mm are severed or injured in the process of any site works during the construction period. The beam must be located on or above the existing soil levels. The location and details of any footings within the Tree Protection Zone (TPZ) shall be detailed in accordance with i) above and on the Construction Certificate Plans."
9. I accept the applicant's preferred condition 12C(ii), as described below, because the preservation of T7 is consistent with the scenic qualities of the waterway and character of the local area, and also addresses a concern raised by Council: "ii) The owner of the subject land, or any person relying on this consent, must place on the Title of the land a restriction on use in favour of Sutherland Shire Council that requires "Tree 7" (as identified in the Joint Expert Report of the Arborists filed in Land and Environment Court proceedings 2019/0381968) to be retained and maintained by the owner of the land."
10. In addition, although not in dispute, to ensure compliance with SEPP BASIX, the Court amends condition 1 to refer specifically to the BASIX certificate as provided in Exhibit 1.

Conclusion

1. The proposed development has been assessed by the Court, based on the evidence before me, including the DA's (amended) supporting plans, documents, draft conditions of consent, expert reports and photographs.
2. After consideration of the evidence before me and conditions of consent, I am satisfied that the amended DA under appeal addresses the relevant matters established in ss 4.15(1)(a)(i), (ii) and (iii) of the EPA Act.
3. I accept that s 4.15(1)(a)(iiia) of the EPA Act is not relevant to the amended DA under appeal. With regards to s 4.15(1)(a)(iv), I am satisfied this is addressed where relevant to the site.
4. I am satisfied that the proposed development will not have adverse environmental, social or economic impact, and that the site is suitable for the proposed development. Therefore, ss 4.15(1)(b) and (c) of the EPA Act are achieved.
5. I accept that the DA under appeal was notified to residents, consistent with the requirements of the SSDCP, and that any subsequent changes to the DA as amended, are minor and positive, and therefore do not require re-notification. The (resident) submissions received in response to notification of the DA are all in support, and have been provided in evidence and are assessed by the Court. I am satisfied that s 4.15(1)(d) of the EPA Act is achieved.
6. The resident submissions have been considered, and there is no assessed adverse impact to adjoining residents. Therefore, I am satisfied that the proposed development is in the public interest, and s 4.15(1)(e) of the EPA Act is achieved.
7. Therefore, the appeal for DA 19/0114 is approved, pursuant to s 4.16(1)(a) of the EPA Act.

Orders

1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on amended plans, dated November 2020 in Exhibits J and K. 2. The appeal is upheld. 3. Development Application (DA) 19/0114 which as amended, seeks alterations and additions to an existing dwelling, a new carport and studio, associated engineering works and tree removal on Lot 13 DP 12294, also known as 25 Pacific Crescent, Maianbar is approved. 4. The exhibits are returned, except Exhibits 2, A, B, J and K. ……………………. Sarah Bish Commissioner of the Court Annexure A (225945, pdf) Plans (Exhibit J) (636938, pdf) Plans (Exhibit K) (2585808, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2020